The Shrinking Price of Mass Surveillance

Technology's made keeping tabs on individuals hundreds of times cheaper than when the Constitution was written.

By now most Americans agree that the NSA surveillance program, brought to light by leaked documents from former NSA contractor Edward Snowden, went “too far.” Just because the spy agency could keep tabs on every American, did not mean it should. The price of surveillance technology, however, had dropped so precipitously over the last two decades that once the agency overcame any moral objections it had about the program, few practical considerations stood in its way of implementing a system that could monitor 315 million Americans every day. Indeed, one estimate tagged the NSA’s annual surveillance costs at $574 per taxpayer, amounting to a paltry six-and-a-half cents an hour.

If privacy law experts Kevin S. Bankston and Ashkan Soltani are correct, costs, once a significant check on government spying and police monitoring efforts, have become an afterthought. In a recent study published in the Yale Law Journal Online, Bankston and Soltani found that most technologies deployed for mass-surveillance efforts by police departments (e.g., GPS devices and domestic drones) exhibit similar cost structures to the NSA spying program: as the number of subjects increase, the cost of keeping tabs each target nears zero. Cheaper, more effective tracking devices have been a boon to cash-strapped police departments nationwide, largely to the dismay of civil-liberties groups.

Meanwhile, privacy protections afforded to individuals under the Fourth Amendment, the cornerstone of our privacy rights that safeguards individuals from unreasonable searches and seizures by the state, have been eroding for years. Whether a particular search or seizure is deemed ‘reasonable’—thus justifying police action—rests largely on our ephemeral notions of privacy. It’s a dicey standard. As we place more of our private lives in the public domain (73 percent of adults online use social media), we, as well as courts, consider fewer acts to be truly private and thus protected by the constitution. At the height of McCarthyism in the 1950s, for instance, groups fought tooth-and-nail to keep library lists private; today we publicize the titles of books we’ve recently read on sites like Facebook and Goodreads.

Practical considerations, like costs, Bankston and Soltani argue, have long provided structural defenses that have buffeted the sliding privacy standard embedded in the Fourth Amendment. Imagine, in the 1800s ten constables surreptitiously tailing one suspect through the winding streets of Philadelphia; by the 1940s the same task still took eight officers in four police cars to accomplish. Monitoring each suspect was costly. “Only an investigation of unusual importance,” according to Justice Samuel Alito, “could have justified such an expenditure of law enforcement resources.”

Pages